Rep. Louie Gohmert (R-TX) and a handful of Republican slate of electors from Arizona filed a federal suit in the U.S. District Court in the Eastern District of Texas on Sunday, suing Vice President Mike Pence’s in a long-shot bid to throw out the rules that govern Congress’ counting of electoral votes on Jan. 6.
The 28-page lawsuit focuses on Pence’s role presiding over next week’s congressional certification and the procedural issue overseen by the Vice President under an arcane 1887 federal law known as the Electoral Count Act. The vague statute unconstitutionally binds Pence from exercising total authority to choose which votes to count.
Pence, the suit contends, is only be guided by constitutional provisions and should exercise “sole discretion in determining which electoral votes to count for a given State, and must ignore and may not rely on any provisions of the Electoral Count Act that would limit his exclusive authority.”
Gohmert in the lawsuit is asking the federal judge in Texas to strike down the law as unconstitutional.
“These provisions of Section 15 of the Electoral Count Act are unconstitutional insofar as they establish procedures for determining which of two or more competing slates of Presidential Electors for a given State are to be counted in the Electoral College,” the lawsuit argues. “This violation occurs because the Electoral Count Act directs the Defendant, Vice President Michael R. Pence, in his capacity as President of the Senate and Presiding Officer over the January 6, 2021, Joint Session of Congress: (1) to count the electoral votes for a State that have been appointed in violation of the Electors Clause; (2) limits or eliminates his exclusive authority and sole discretion under the Twelfth Amendment to determine which slates of electors for a State, or neither, may be counted; and (3) replaces the Twelfth Amendment’s dispute resolution procedure — under which the House of Representatives has sole authority to choose the President.”
The lawsuit comes before Judge Jeremy Kernodle, a Trump appointee to the U.S. District Court for the Eastern District of Texas. It’s unclear if he’ll grant the request for an expedited judgment as Gohmert requested.
The suit also asks Judge Kernodle to grant Pence “exclusive authority” to select the slates of alternative electors in states where the election results were highly contested when Congress formalizes the Electoral College vote.
“Under the Twelfth Amendment, Defendant Pence alone has the exclusive authority and sole discretion to open and permit the counting of the electoral votes for a given state, and where there are competing slates of electors, or where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted,” the lawsuit states.
Gohmert also argued that alternate electors in seven contested states — Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin who certified Joe Biden the winner of their states, should also send all their “competing slates” of presidential electors “as a result of the extraordinary events and substantial evidence of election fraud and other illegal conduct before, during, and after the 2020 general election in these states.”
“This is not an abstract or hypothetical question, but a live “case or controversy” under Article III that is ripe for a declaratory judgment arising from the events of December 14, 2020, where the State of Arizona (and several others) have appointed two competing slates of electors,” the lawsuit argued.
Those seven battleground states have a total of 84 electoral votes, enough to hand President Trump a victory and overturn the election results.
Electors from 50 states cast their Electoral Colleges voted on Dec. 14 and certified that Biden received 306 electoral votes with Trump receiving 232 electoral votes. In states that declared Biden the winner, pro-Trump electors cast ballots of their own, however, they are considered to have no legal significance.
Among the plaintiffs joining Gohmert in the lawsuit includes Arizona Republican Party Chairwoman Kelli Ward, Students for Trump COO Tyler Bowyer, Arizona Republican Party Executive Director Greg Safsten, and Maricopa County Republicans Second Vice Chair Nancy Cottle.
Throwing out the rules under the 1887 federal law, per Gohmert, would allow Pence to decide which electors to consider in the first place, raising the specter that he could simply choose to count Trump’s elector slate. If Pence decides to opt-out from presiding in the Congressional session, Sen. Chuck Grassley (R-IA), the Senate president pro term would be next in line and likely step in for the first time since 1969.
According to filings so far, Pence has yet to respond to the lawsuit, but U.S. Attorney Stephen Cox and acting Attorney General Jeffrey Rosen have also been served with the lawsuit.
The lawsuit puts Pence in the position to either contest the suit or support it. Although Pence an avid loyal supporter of Trump has met with a group of GOP lawmakers who are looking to contest the election results to make sure both GOP House and Senate lawmakers are on the same page, he has, however, remained silent on publicizing how he would handle the overall role fight to overturn Trump’s electoral defeat.
Gohmert indicated in the suit that he will be joining the efforts that is spearheaded by Alabama Republican Rep. Mo Brooks to challenge the Electoral College vote-count on Jan. 6.
However, Senate Majority Leader Mitch McConnell after acknowledging Biden as president-elect following the Electoral College vote, warned fellow GOP senators in a private call that such a fight would yield a “terrible vote” for Republicans come 2022 and beyond.
Last week, Trump met with the group of a dozen GOP lawmakers at the White House, where they strategized the logistics and plans to challenge the results in six states that would play out on the House floor.
“Big meeting today with @realDonaldTrump, @VP, the President’s legal team, @freedomcaucus and other Members of Congress,” Georgia Rep. Jody Hice tweeted. “I will lead an objection to Georgia’s electors on Jan 6. The courts refuse to hear the President’s legal case. We’re going to make sure the People can!”
Dozens of other House Republicans intend to follow suit, and at least one GOP senator — Sen-elect-Tommy Tuberville of Alabama has signaled he will join on the House GOP to contest the election results during the joint session. Each of the six states and its electors can be challenged individually, meaning Trump’s allies — as long as one House member and one senator sign on to the challenge — can drag out the vote-counting process with the total debate time would estimate over 18 hours, a process that would spill into the wee hours of Jan. 7.
“I believe we have multiple senators, and the question is not if, but how many. More and more congressmen and senators are being persuaded that the election was stolen,” Brooks said last week when asked about the White House meeting. “It was a back-and-forth concerning the planning and strategy for January the 6th. Pence will have a tremendous amount of discretion, though I think the rulings he will make will be pretty cut and dry.”
Any objections to the electoral votes must be submitted in writing and signed by at least one House and one Senate member. While only one senator and congress member can be the chief sponsor of each objection, other lawmakers will likely be listed as cosponsors. If an objection arises, the two chambers will consider the objection of the state’s election results to decide how to count those votes separately.